Ashforth and Ashforth (No 2)

[2010] FamCA 330

FAMILY COURT OF AUSTRALIA

ASHFORTH & ASHFORTH (NO. 2) [2010] FamCA 330

FAMILY LAW – COSTS – principles – weight given to relevant matters

Family Law Act 1975 (Cth) ss 117(1), 117(2A)

Penfold v Penfold (1980) 144 CLR 311

APPLICANT: Mr Ashforth

RESPONDENT: Ms Ashforth

FILE NUMBER: MLC 9801 of 2009

DATE DELIVERED: 22 April 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: The Hon. Justice Rose

HEARING DATE: 22 April 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: J Lloyd SC

SOLICITOR FOR THE APPLICANT: Paul & Paul Lawyers

COUNSEL FOR THE RESPONDENT: J Chapple

SOLICITOR FOR THE RESPONDENT: Newnhams Solicitors

Orders

The order that I make is as follows:

1. That the application of the husband filed 29 March 2010 is dismissed. 

IT IS NOTED that publication of this judgment under the pseudonym Ashforth & Ashforth is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: MLC 9801 of 2009

MR ASHFORTH

Applicant

And

MS ASHFORTH

Respondent

REASONS FOR JUDGMENT  

Introduction

1. By his Application in a Case filed 29 March 2010, (“the application”) the husband seeks an order for costs against the wife. 

2. The application arises out of the determination of the proceedings between the parties on 29 January 2010 and the orders that were made by me on that day. 

3. The application is opposed.  The wife seeks an order that the application be dismissed. 

4. Senior counsel for the husband pointed out quite properly that the order sought in terms of quantum necessarily reflects solicitor-client costs in the amount of about $15,000.00.  It is submitted that on a party-party basis the amount is $10,000.00.  However, in the event that the husband was successful on either basis and should the quantum sought not be accepted as being proper, then an order is sought that costs be taxed. 

5. On 21 January 2010, I heard the application of the husband for an anti-suit injunction. I also heard the wife’s application for a stay of the pending financial proceedings between the parties, as well as her application for a change of venue, so that pending proceedings between the parties on all issues be transferred from the Melbourne Registry to the Sydney Registry.  

6. So far as the husband’s case application was concerned, it was successful.  The wife's application for a change of venue was also successful in that during the course of the hearing before me counsel for the husband in effect submitted to the Court’s Order.

7. Given that the husband’s application for an anti-suit injunction, having regard to the applicable principles for choice of forum was successful, it followed that the wife’s application for a stay of the financial proceedings between the parties was unsuccessful. 

8. The substantive issue for determination before me on 21 January 2010 was whether or not this Court was a clearly inappropriate forum for the purpose of determination of the pending property settlement proceedings between the parties and prospectively spousal maintenance proceedings.  Linked with that necessarily was whether or not an order in relation to an application for a possible stay of proceedings in the United Kingdom should also be made.

9. The solicitor for the wife today submitted that there were also issues in relation to lodgement by the husband of the child’s passport and for change of venue.  He is correct in that submission. However, as the matter proceeded on 21 January 2010 those issues were relatively minor compared to the substantive issue of forum. 

Relevant legal principles and relevant matters

1. Section 117(1) of the Act provides a general principle in relation of costs in this jurisdiction, namely that each party bears his or her own costs.  As has been emphasised by the High Court in Penfold’s case[1], the court has a wide discretion to make an order in the event that a circumstance has been established which may make it proper for an order to be made, having regard also to the matters, so far as they are relevant, set out in subsection (2A).

   [1] Penfold v Penfold (1980) 144 CLR 311

2. Consequently, the threshold question is whether or not a circumstance has been established which may make it proper for a costs order to be made. 

3. In my view, such a circumstance has been established as the substantive issue for determination arising out of the hearing on 21 January 2010 was whether or not this Court should continue to exercise jurisdiction in relation to the pending property settlement proceedings between the parties. 

4. As is clear from the judgment given on 29 January 2010 and the orders made that day, the husband was wholly successful in relation to that issue. 

5. I am then required, however, to consider such relevant matters that arise pursuant to subsection (2A), to which I have made earlier reference.  I will deal with those matters in accordance with the submissions that were made today. 

The conduct of the proceedings

1. In relation to the matter of whether this court should continue to exercise jurisdiction did not have any adverse aspects.

2. In my view, the case for the wife did raise issues of substance, albeit that she was unsuccessful. Those issues of substance were that the cohabitation between the parties and all of their available assets of significance were in the United Kingdom.  Consequently, there was a relevant connection with the jurisdiction that might be exercised in that Country in accordance with accepted principles.

3. The wife, in my view having regard to that matter, was entitled to put forward submissions which ultimately were unsuccessful on the issue of forum. 

4. So far as the other issues were concerned, I accept the submission made by the solicitor for the husband that so far as change of venue is concerned, the opposition to it immediately prior to the hearing on 21 January 2010 lacked any merit. 

5. So far as lodgement of the child’s passport was concerned, I have come to a similar conclusion.

6. With regard to the parties’ financial circumstances, the equity in their most significant assets is relatively small.  Each of the parties now earns significant income.  At the time of the hearing, the wife’s financial circumstances were strained and that has been alleviated to a considerable extent due to the information that I was given this morning by agreement, namely that the wife is now in full-time employment with a bank, earning $125,000.00 including superannuation contributions per annum.

Conclusion

1. I have concluded that there will not be an order for costs as sought.  My reasons are as follows.

2. The general principle that each party bears his or her own costs should not be departed from, given that although the wife was unsuccessful in her opposition to the application, as well as her application for either proceedings to be continued in Australia or otherwise that they be stayed so that the proceedings she had instituted in the United Kingdom can be continued, nonetheless there were issues of substance which she raised which had merit.

3. It does not follow, as in other jurisdictions, that because a party was unsuccessful, therefore costs follow the event. 

4. I have taken into account also that the wife’s financial position overall is still not approaching the level of the husband, due to not only her equity in assets and her income, although that that has now significantly improved, but she also has a range of expenditure for herself and the child, albeit assisted by child support, that the husband does not have.

5. The wife was also successful in relation to the issue of change of venue, notwithstanding that that issue did not occupy anything other than a minor portion of the actual hearing time. 

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose

Associate: 

Date:  30 April 2010